헌법재판소 선례의 의미 - 위헌법률심판과 헌법재판소법 제23조 제2항을 중심으로 -

Precedents of the Constitutional Court of Korea have a practical significance; a qualified majority is required to overrule precedents, and a precedent having reaffirmed the constitutionality of punishment provisions delimits its overruling decisions in their retroactive annulment. The practical criteria to define constitutional precedents, however, are nowhere near the clarity. Constitutional precedents are another type of judicial precedents: rationales in previous rulings, which lead to and are essential to their conclusion, and which are persuasive and expansive enough to be referred to in other cases. They are still different from ordinary precedents in that their subject is the constitutionality of statutes, and that a qualified majority is needed to overrule them. This gives rise to the following criteria of constitutional precedents: constitutional precedents entail not only the Court's interpretation of the Constitution, but also that of statutes, especially regarding analytic rules on interpreting statutes; plurality opinions, none of which has a majority vote among the Court, do not constitute precedents, and especially, opinions declaring unconstitutionality have no precedential value, if no more than five Justices consent to them, for they lack the justificatory power the Constitution requires to declare a statute unconstitutional; constitutional norms represented in the disposition of the judgement, or Tenor(G) also have precedential value, especially in case of plurality decisions.